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2022 DIGILAW 569 (GAU)

George Zosangzuala v. Lalchhawntluangi

2022-05-31

MARLI VANKUNG

body2022
JUDGMENT : MARLI VANKUNG, J. 1. Heard Mr. C. Lalfakzuala, learned counsel for the appellant and Mr. K. Laldinliana, learned counsel for the respondent. 2. This is an appeal under section 17(2)(b) of the Mizoram Civil Courts Act, 2005 read with Section 96(2) CPC for filing the appeal against the impugned ex-parte Judgment and Order and decree dated 19.08.2019 passed by the learned Senior Civil Judge-IV, Aizawl. 3. The brief facts of the case is that the plaintiff/respondent filed a case a in the court of Sr. Civil Judge for the recovery of Rs. 8,00,000/- along with interest @ 12% p.a. w.e.f. 15.12.2014 onwards. The plaintiff/respondent had invested Rs 8,00,000/- with the defendant who assured her that the invested money would earn a profit of Rs. 1,92,000/- on its maturity date i.e. 20.12.2015. When no such recovery could be made even after the plaintiff waited for over a year beyond the maturity date, she filed the Money Suit No. 99 of 2017 in the Court of Senior Civil Judge-IV, Aizawl. Thereafter, the learned Trial Court due to the non-appearance of the defendant passed an order that the case will be proceeded ex-parte against the defendant Nos. 1 and 3 on 18.07.2018 and the Court proceeded to take evidence of the plaintiff/respondent and the Trial Court finally pronounced the impugned ex-parte Judgment and Order and decree dated 19.8.2019 in favour of the plaintiff/ respondent. Being aggrieved with the impugned ex-parte Judgment and Order dated 19.8.2019, the appellant has filed the present appeal. 4. The learned counsel for the appellant, Mr. C. Lalfakzuala submits that on 20.8.2018 despite the fact that the appellant and the defendant nos. 2 and 3 have failed to submit any written statement, the learned Trial Court had framed issues noting that issues were framed on the submission made by the parties. The learned Trial Court had accepted the examination-in-chief of the respondent/appellant and fixed 25.10.2018 for cross examination of the plaintiff witness however since the plaintiff witness was absent on 25.10.2018, the trial court dismissed the case due to non appearance and the case was later restored on 20.03.2019. The learned Trial Court had accepted the examination-in-chief of the respondent/appellant and fixed 25.10.2018 for cross examination of the plaintiff witness however since the plaintiff witness was absent on 25.10.2018, the trial court dismissed the case due to non appearance and the case was later restored on 20.03.2019. On 08.05.2019, it appears that the parties were present through their counsels however since the plaintiff witness was absent, next date was fixed on 27.05.2019 where the matter was listed again on 19.06.2019 without giving an opportunity for cross examination of the witness by the defendant which then does not constitute and evidence. The appellant/defendant denies all the allegations made by the plaintiff/ respondent and submits that an opportunity may be given to submit their written statement or to cross-examine the respondent/plaintiff in order to bring out the truth. 5. The failure of the appellant to submit written statement on appearance in the Court was due to the ill health of his engaged lawyer in the Trial Court. This has prevented the appellant from defending his case from the trial court and the mentioned that the advocate had accordingly submitted an affidavit regarding his illness and his inability to appear before this Court and the appellant should not be made to suffer due to the non appearance of his learned counsel. In support of his submission, he has cited the Apex Court decision in the case of Rafiq and Another vs. Munshilal and Another, (1981) 2 SCC 788 , Lal Devi and Another vs. Vaneeta Jain and Others, (2007) 7 SCC 200 and Neerja Realtors Private Limited vs. Janglu (dead) through Legal Representative, (2018) 2 SCC 649 . 6. Mr. K. Laldinliana, the learned counsel for the respondent on the other hand submits that no error has been committed by the learned Trial Court in passing the ex-parte Judgment and Order and Decree dated 19.8.2019. He submits that the court had no alternative but accept the examination in chief of the respondent/plaintiff since none appeared on behalf of the appellant/defendant to cross examine the said witness at the relevant time, that the M.S. No. 99/2017 had been dismissed by the Trial court for non appearance of the plaintiff witness and the plaintiff/respondent filed an application for restoration of the Money Suit and the same was registered as CMA No. 87/2017 arising out of M/S No. 99/2017. At the time of hearing of the said CMA No. 87/2017, the respondent/appellant in the instant appeal was represented by the counsel and the matter was heard at length. In the restoration order dated 20.3.2019, it was stated that the Money Suit No. 99/2017 shall be put up on 16.4.2019, hence, the contention that the appellant had no opportunity or notice of restoration is false. 7. The learned counsel further submits that the appellant was given sufficient chance to file his written statement but since no written statement has been filed, the learned Court had rightly decided to proceed the case ex-parte against the appellant. There are no documents submitted to show that the lawyer engaged by the defendant/appellant was absent due to ill health and the counsel had failed to inform the Trial Court about his ill health even through his junior colleagues and therefore the contention of the appellant cannot be accepted. From the order sheet it clearly shows that the appellant counsel were attended Court on 8.5.2019 but still failed to submit any written objection. That there is no error or illegality in passing the Judgment and Order and Decree dated 19.8.2019. 8. Mr. K. Laldinliana, the learned counsel for the respondent also pointed out that the defendant had failed to submit his written statement as per order VIII Rule 1 C.P.C and as such cannot do so at a belated stage. The counsel has relied on the Apex Court decision of M/s SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. and Others, Civil Appeal No. 1638 of 2019 and SPL (C) No. 103/2019. 9. Having considered the submissions made by both the parties and on perusal of the LCR, this court finds that the only point to be looked into in this appeal, is whether the learned trial court had erred in passing the order dated 18.07.2018 for the court to proceed ex parte against the defendant due to non submission of w/s and thereafter proceeded with the case wherein the defendant was not given the opportunity to cross examine the plaintiff witness on 27.05.2019, since ex-parte proceedings were drawn against the defendant on 18.07.2018 and subsequently passed the impugned ex parte Judgment and order and decree dated 19.08.2019. 10. 10. A perused of the order sheet of the trial court shows that an order/notice dated 08.12.2017 was served upon the defendant and in response the defendant/respondent had engaged a counsel Mr. H.Laltanpuia to represent him and vakalatnama was submitted in the court on 13.02.2018, wherein, 6.04.2018 was fixed for submission of w/s by the defendant no. 1. On 6.4.2018 none of the defendants appeared and the plaintiff prayed for service of notice through newspaper publication under Order V Rule 20 CPC by fixing court date on 22.5.2018, however since the ld Trl. Judge was on tour, 13.6.2018 was again fixed for newspaper publication. On 13.6.2018 since no newspaper publication was made, the plaintiff prayed for chance for newspaper publication and 18.7.2018 was fixed for newspaper publication. On 18.7.2018 it was noted that newspaper publication was not made however the ld trial court noted that the defendant no. 1 nor his counsel appeared though vakalatnama was submitted on 13/2/2018 and no written statement or written objection was submitted till date and concluded that the defendants have no interest in contesting the instant suit and decided to proceed ex parte against the defendants, fixing 20.08.2018 for framing of issues. 11. Thereafter on 20.08.2018 inspite of the order to proceed ex parte against the defendant, the ld. Trial court noted that the parties were represented by their counsels and mentions that “from the pleading of the parties” (five) 5 nos. issues were framed, inspite of the fact that no written objection or written statement was filed by the defendants. 12. There is no explanation regarding the above, this court also finds the order dated 18.7.2018 unsustainable for the reason that no notice was served to the defendants for appearance on 18.7.2018 as newspaper publication was not made. No opportunity was given to the defendants to make their appearance on 18.7.2018 by issuing notice to the defendants wherein the trial court decided to proceed with the case ex-parte due to the absence of the defendants. 13. Further the trial court had dismissed the Money Suit No. 99/2019 on 25.10.2018 and had allowed the restoration of Money Suit No. 19/2017 vide the Order dated 20.3.2019. In the said order it mentioned that the Money Suit No. 99/2017 shall be put up on 16.4.2019, however, no notice seem to have been issued to the defendant/appellant. 13. Further the trial court had dismissed the Money Suit No. 99/2019 on 25.10.2018 and had allowed the restoration of Money Suit No. 19/2017 vide the Order dated 20.3.2019. In the said order it mentioned that the Money Suit No. 99/2017 shall be put up on 16.4.2019, however, no notice seem to have been issued to the defendant/appellant. On the perusal of order sheet the orders dated 27.5.2019, 19.9.2019, 27.6.2019, 27.7.2019 and 19.8.2019 do not give an opportunity to the defendants make any submission in the matter since no notice was issued to the defendant. 14. The Apex Court in Rafiq and Another vs. Munshilal and Another (supra) held that: “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.....The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order.” 15. A similar view was taken in Lal Devi and Another vs. Vaneeta Jain and Others (Supra) In view of the above decisions of the Apex court and the observations made after peruse of the order sheet of the learned Trial Court, where no notice was served upon the defendants after the vakalatnama was filed by the counsel for the defendant no. 1 on 13.2.2018, this court finds that in the interest of equity and justice, the defendant no. 1 should not be made to suffer for the in action of his counsel who had not submitted the written statement or written objection after filing his vakalatnama on 13.2.2018. 16. In view of the above reasons, I find it fit to set aside the exparte Judgment and Order and decree dated 19.08.2019 passed by the learned Senior Civil Judge-IV, Aizawl and the appellant/ defendants may be given an opportunity to file their w/s and be given a chance to contest the Money Suit No. 99/2017. 17. Both the parties are to appear before the learned court of Sr. Civil Judge-V on 24.06.2022 for further orders/steps. 18. RFA No. 9 of 2020 is accordingly allowed and stands disposed of.